ANALYSIS Berihun Gebeye 05 November 2021
Kenyan courts’ use of the basic structure doctrine to strike down President Uhuru Kenyatta’s the Constitution of Kenya Amendment Bill 2020 as unconstitutional has attracted many reactions both in Kenya and abroad. We have seen extremely rich arguments about the basic structure doctrine in Kenya both in the High Court and the Court of Appeal where the doctrine is found to be applicable. We will see similar interesting arguments at the Supreme Court for one last time as this court decides on President Kenyatta’s constitutional amendment proposal once and for all. But in this post, I will examine the contingent role of the basic structure doctrine for constitutionalism and democracy in Africa more generally.
The basic structure doctrine, in its classic formulation, provides that regardless of the existence or absence of an express limitation, there is an implied and substantive limitation to a constitutional amendment, the objective of which is to protect the “basic structure” or the “core element” of a constitution. Thus, some aspects of a constitution are unamendable and that these aspects could be changed only through a mechanism outside of the constitution. At the risk of over simplification, the theoretical origin of the doctrine is associated with some conceptions of constituent power, its legal and/or practical relevance is associated with the protection of the democratic constitutional state, and its effect is related to maintaining the core constitutional dispensation in a polity. And its major operating assumptions lie in its commitment to the classic statist constitutionalism, its consideration of the constitution as a legitimate and a true reflection of the will of the people, and its consideration of the state and the people as sovereign actors both as a matter of theory and empirical reality.
A judicial doctrine that could maintain these constitutional and democratic circumstances and sustain these assumptions is indeed worth defending and exporting. While the German professor Dietrich Conrad was instrumental in bringing in the basic structure doctrine to the attention of Indian lawyers, the acceptance and further development of the doctrine there may have to do with the way in which self-government and democracy were constituted at the dawn of British colonialism as Madhav Khosla shows in India’s Founding Moment, how ordinary people see and attribute meaning to the Constitution and argue with it asRohit De demonstrates in A People’s Constitution, and the popular or institutional belief in the transformative capacity of the Constitution as Gautam Bhatia writes in the Transformative Constitution. All these contextual factors show that, in addition to the contestations around the nature and structure of constituent power that form the substantial part of the basic structure doctrine literature, the material conditions in which the constituent power exists and operates, and the nature of the polity under consideration are key determinants whether we should apply the basic structure doctrine or not. And if we decide to apply it, to what extent and how. Here lies the contingent role of the basic structure doctrine in the African context.
First, every constitution may have a basic structure, but all basic structures may not be worth defending or preserving. There may be a basic structure that should be changed in as much as there may be a basic structure that should be safeguarded. And this has nothing to do with the doctrine as such, but with its theoretical assumptions and widely held objectives. As Yaniv Roznai, one of the leading scholars on the subject, observed the doctrine is mainly applicable to democratic constitutions, which in practice regulate and limit power, protect rights, and effectuate the rule of law, not to sham constitutions. But whether a certain constitution is sham or not is predominantly an empirical question. For example, whether a constitution is a genuine expression of the will of the people or rather an expression of the will of the elites, or even the will of some of the elites? Whether it practically regulates the behavior of institutions, leaders, and citizens or it is a legitimation tool for maintaining the interests of the few, not the many? These are empirical questions whose answers are largely to be found outside of the constitution.
Before applying the basic structure doctrine, then, we must conclude that the constitution under consideration is not sham: a determination relatively easy for legal scholars but extremely difficult, if not impossible, for judges who derive their position and authority from said constitutions they promise to uphold and enforce. Consider, for example, the 1995 Constitution of Ethiopia and the 1999 Constitution of Nigeria where a particular elite – former rebel armed groups in the case of the former and the military in the case of the latter – imposed a constitution over the people, but at the same time disregard constitutional rules at will, violate rights, and undermine the rule of law. In these circumstances, the application of the basic structure doctrine would prevent constitutional and democratic development and simply maintain the elite’s grip on power over the people. As Rosalind Dixon and David Landau show in their new book, Abusive Constitutional Borrowing, the basic structure doctrine could become part of the toolkit of abusive constitutionalism that subverts the democratic transition and consolidation in many parts of Africa.
Second, even when we have democratic constitutions, we may have to consider the nature of the state to determine how we may apply the basic structure doctrine. This is because there are some states which try to establish a ‘more perfect union’ as in the United States or a democratic republic as in India within their existing territorial borders, but there are also states under transformation as in Europe with European integration or in Africa (which largely follows the European model) with a continental or sub-regional political union where public law has both a national and supranational dimension. Consider Kenya: it adopted a democratic constitution in 2010; along with other member states of the East African Community, it adopted a new political confederation as a transitional model of the East African Community to a political federation in 2017; and again, with the rest of the continent, it aspires and works to form a continental federation or confederation in less than five decades as part of the African Union Agenda 2063. Hence, the state in Africa is under continuous transformation. And so is public law.
In states under transformation, there seems to be a belief and commitment that a regional political community may provide both the material conditions and the normative and institutional resources for a sustainable practice of democracy, protection of rights, and respect for the rule of law. In these states, unlike the case in India, which aspires to establish and practice democracy within the Westphalian state paradigm, the basic structure doctrine should account for supranational constitutional rules and aspirations. Additionally, as we have seen in Europe, especially in Hungary and Poland, constitutional identity (a variant of the basic structure doctrine) could be used to defend the classic notions of sovereignty and the attributes of the nation-state, which may challenge and erode liberal democratic constitutional values both at the national and supranational levels. The ruling of the Polish Constitutional Tribunal of 7 October 2021 that asserts the supremacy of the Polish Constitution over some other European Union laws is a recent example of a constitutional identity inspired judgment that, according to commentators, may challenge democracy and the rule of law not only in Poland but also in the European Union.
How we can apply the basic structure doctrine to states under transformation is a difficult question that I will not be able to answer fully here. But in the African context, before applying the doctrine, we have to answer one empirical question: whether the constitution under consideration is sham or not; and one legal question: whether the proposed constitutional amendment follows the existing amendment rules. If the constitution is a sham, I think there is no need to apply the basic structure doctrine as it simply hinders progressive constitutional and democratic change. Similarly, if the proposed constitutional amendment did not follow the existing procedural and/or substantive amendment rules, I don’t think it is necessary to engage with the substance of the proposed amendment. There is always a next time to engage with the substance and that courts should not close the room for further engagement and dialogue. This is for pragmatic reasons. As Tom Daly showed us, unlike courts in established democracies, which operate within the universe of the structural and normative frameworks of a democratic government, courts in non-established democracies, as in Africa, are expected to both judge and facilitate the democratization process, a task that is too onerous for courts to execute as well as a task that requires courts to exercise prudence. So, the basic structure doctrine should be a measure of last resort, and the judgment of the High Court of Kenya, which the Court of Appeal upholds, could provide a blueprint for thinking about its application in the African context.
As Kenyan jurists carefully and skillfully crafted, the basic structure is not unamendable. It is amendable. But it requires a different procedure and a different source of power, that is primary constituent power. While this primary constituent power is substantively free to change the basic structure of the Constitution, it is procedurally limited. This power can only be exercised ‘after four sequential processes are met: civic education, public participation, constituent assembly debates, and referendum.’ Through the invention of a normatively open and procedurally regulated primary constituent power, the Kenyan basic structure doctrine aims or attempts to democratize Carl Schmitt’s idea of primary constituent power that knowns no procedural and substantive limits. Put differently, popular sovereignty (as exercised in the above four sequential processes) is the concrete manifestation of primary constituent power, which is empowered to inaugurate or displace the Constitution at any time. Hence, what is really basic in the basic structure of the Constitution, are not primarily those normative values or institutional setups that constitute it, but the power of the people to make and unmake those normative and institutional choices.
Other African countries can build on the Kenyan basic structure doctrine that takes popular sovereignty seriously. In addition to its analytical potential in mediating some tensions between democracy and constitutionalism, a constitutional theory and practice that takes popular sovereignty seriously not only decolonizes the constitutional experience but also expands constitutional literacy. This is because it is a government based on the general will of the people that can redeem the foundational violence inherent in the establishment of the colonial state and that can, concomitantly, make it a transformational entity for full self-determination. A government based on the general will of the people is inherently decolonial as it displaces the theory of colonial government and the modus operandi of its successor, the imperial executive. Additionally, only a constitutionally literate public can meaningfully claim its rights, defend its interests, hold its government accountable, and protect its constitution.
[Editor’s note: This blogpost was recently published on the I-CONnect Blog as well.]
Berihun Gebeye is a postdoctoral research fellow at the Max Planck Institute for Comparative Public Law and International Law in Heidelberg. He has published several articles dealing with legal pluralism, for more information see his publications: Decoding Legal Pluralism in Africa (2017) and The Janus Face of Legal Pluralism for the Rule of Law Promotion in Sub-Saharan Africa (2019).